1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [NAME REDACTED] ) ISCR Case No. 16-02954 ) Applicant for Security Clearance ) Appearances For Government: Carroll Connelley, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ BORGSTROM, Eric H., Administrative Judge: Applicant mitigated the security concerns raised by his foreign contacts and outside activities. Eligibility for access to classified information is granted. Statement of the Case On November 23, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B (foreign influence).1 Applicant responded to the SOR and requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, scheduling the hearing for May 17, 2017. I convened the hearing as scheduled. Government Exhibits (GE) 1-2 were admitted without objection. Applicant 1 The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines implemented by the DOD on September 1, 2006. Security Executive Agent Directive 4 (SEAD 4), issued on December 10, 2016, revising the 2006 adjudicative guidelines. The SEAD 4 guidelines apply to all adjudicative decisions issued on or after June 8, 2017. 2 testified, and Applicant’s Exhibit (AE) A was admitted, without objection.2 The record closed on June 8, 2017. I received the hearing transcript (Tr.) on June 1, 2017. Procedural Issues On February 1, 2017, Department Counsel amended the Statement of Reasons to add an allegation under Guideline L. On March 2, 2017, Applicant responded and denied the additional allegation. At hearing, the Department Counsel’s motion to amend the SOR was granted without objection.3 On May 11, 2017, I issued an order informing both parties that although the SOR referenced the adjudicative guidelines implemented by the DOD on September 1, 2006, I would be applying the revised adjudicative guidelines (AG) effective as of June 8, 2017, pursuant to SEAD 4. The parties acknowledged receipt of my order and raised no objection. Findings of Fact The SOR alleges security concerns under Guidelines B and L arising from Applicant’s contacts with three foreign nationals. Applicant denied all four allegations. After a thorough and careful review of the pleadings and exhibits, I make the following findings of fact: Applicant is 69 years old. He received his doctoral degree in 1976. Since 1983, he has been employed as a faculty member at a U.S. university, where he currently directs an interdisciplinary graduate-school program. Given its focus on law, diplomacy, negotiations, and international security studies, this program draws students internationally, including both U.S. and foreign military and government personnel. For several years, he has been employed part time as a consultant for a DOD contractor, conducting seminars and training for U.S. and foreign militaries, security services, and government personnel. He has been married to his third wife since 1993, and he has a 21-year-old son.4 The SOR allegations involve foreign contacts directly or indirectly originating from his role as a university professor. In 2012, a Bahrain citizen (SOR ¶ 1.a.) attended a semester-long course taught by Applicant. At the time, the student was employed by the 2 AE A is a letter of recommendation from Applicant’s DOD client. 3 Tr. 10-14. At hearing, Department Counsel further moved to amend the Guideline B allegations to render it in conformity with the record evidence. Without objection, the motion was granted. The amended allegations read as follows: 1.a. You maintain contact with a [NAME REDACTED], who is a member of the Bahrain government. 1.b. You maintain contact with [NAME REDACTED], a citizen of the United Arab Emirates (UAE). 4 GE 1; Tr. 72. 3 Bahrain government. Through this former student, a Bahrain government official invited Applicant to Bahrain to give a speech to government officials. The speech’s content was open-source information akin to his lectures with the U.S. graduate-school program. Applicant described the nature of his relationship with the Bahrain citizen as professor- student, and they have had no social contact. The former student has maintained contact via email and Skype a few times a year, due to the student’s interest in further graduate studies. The former student no longer works for the Bahrain government. Applicant’s contact with the Bahrain official ceased in more than three years ago.5 Through another former student, Applicant was contacted by a UAE citizen (SOR ¶ 1.b.) in 2007 and 2008. The UAE citizen was an administrator at a UAE university, and he sought to design a graduate program akin to Applicant’s program at the U.S. university. Applicant designed the graduate program, received a $10,000 consulting fee, and was offered an opportunity to head the UAE graduate program. Applicant declined the job opportunity. Applicant’s consulting work for the UAE university did not overlap with any of his DOD consulting work, and he has had no contact with the UAE citizen since early 2009. Applicant attended the 2006 wedding of the former student – the UAE citizen who connected Applicant with the UAE university official – and they exchange emails annually.6 In 2011, one of Applicant’s students was a Greek military officer (SOR ¶ 1.c). In part due to the facilitation of the former student, Applicant was invited to speak at a conference hosted in Greece by the Greek defense ministry. Military and government personnel from the United States and several foreign nations attended this conference. Applicant was compensated through payment of airfare, lodging, and meals. He had a typical professor-student relationship with this Greek citizen, and they have had no contact in more than three years.7 Through his DOD contracting work, Applicant has made several overseas trips to provide training for foreign defense ministries and their forces. These courses cover international security strategies and topics similar to those of the U.S. graduate-school program. Applicant’s government client at times requests that Applicant utilize his contacts from the U.S. graduate-school program to arrange overseas training courses. Applicant’s annual income consists of his university salary ($200,000+), his DOD consulting work ($25,000-30,000), and his occasional outside speeches and consulting activities ($0-$4,000).8 Since his June 2014 security interview, wherein Applicant’s foreign contacts were scrutinized, Applicant has taken greater care to report his routine foreign contacts as a university professor to his DOD contractor. Applicant is very well-regarded in both 5 Response to SOR; GE 2; Tr. 25-29, 36, 42-43. 6 Response to SOR; GE 2; Tr. 47-52. 7 Response to SOR; GE 2; Tr. 53-59. 8 AE A; Tr. 34. 4 academic and DOD communities for his subject-matter expertise and ethical principles. He has previously held several academic positions at U.S. military academies and senior service colleges.9 Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). 9 Response to Amended SOR; GE 2; Tr. 65-66. 5 Analysis Guideline B, Foreign Influence The security concern under this guideline is set out in AG ¶ 6 as follows: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. There may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S citizens to obtain classified or sensitive information or is associated with a risk of terrorism. “The United States has a compelling interest in protecting and safeguarding information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.”10 The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s foreign contacts are vulnerable to government coercion. Two disqualifying conditions under this guideline are relevant to this case: AG ¶ 7(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and AG ¶ 7(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information or technology. To establish AG ¶ 7(a), the Government must demonstrate a “heightened risk” due to Applicant’s contacts with the three alleged foreign nationals. The Government did not present any materials for administrative notice showing the “heightened risk” due to the countries involved. In the present case, the nature of the relationships involved – professor-student or academic peers – did not rise to the level of “heightened risk of 10 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 6 foreign exploitation, inducement, manipulation, pressure, or coercion. AG ¶ 7(a) does not apply. As to AG ¶ 7(b), Applicant’s overseas speeches were derived from public-source information and were duplicative of his graduate-school lectures, and his UAE consulting simply modeled the graduate-school program after the U.S. graduate-school program. The Government did not establish a potential conflict of interest between Applicant’s contacts and his obligation to protect classified or sensitive information. Moreover, the Government did not demonstrate that the nature of Applicant’s foreign contacts and his “desire to help” were sufficient to establish a potential conflict of interest. AG ¶ 7(b) does not apply. Assuming arguendo that the Government established a prima facie case under Guideline B, the following mitigating conditions under this guideline are potentially relevant: AG ¶ 8(a): the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States; AG ¶ 8(b): there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and AG ¶ 8(c): contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation. All three individuals had connections with the governments or militaries of their respective foreign countries. Nonetheless, the nature of their relationships with Applicant (professor-student or academic peers), their casual and infrequent communication, and Applicant’s deep and longstanding familial and professional relationships in the United States establish that Applicant can be expected to resolve any conflict of interest in favor of the U.S. interest. AG ¶¶ 8(a), 8(b), and 8(c) apply. Applicant mitigated the foreign influence security concerns associated with his routine, casual, and limited contacts with the three alleged foreign nationals. 7 Guideline L, Outside Activities The security concern under this guideline is set out in AG ¶ 36 as follows: Involvement in certain types of outside employment or activities is of security concern if it poses a conflict of interest with an individual’s security responsibilities and could create an increased risk of unauthorized disclosure of classified or sensitive information. One disqualifying condition under this guideline is relevant to this case: AG ¶ 37(a) any employment or service, whether compensated or volunteer, with: (1) the government of a foreign country; (2) any foreign national, organization, or other entity; (3) a representative of any foreign interest; and (4) any foreign, domestic, or international organization or person engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology. Applicant’s contacts with the three foreign nationals led to a conference in Bahrain, a consulting job for the UAE university, and the conference in Greece. His participation in all three instances was compensated by a foreign government or entity. Although Applicant’s outside activities with these three entities has ceased, he continues to engage in similar conferences, speeches, and seminars either hosted by or compensated by foreign nationals, governments, or entities. Notwithstanding Applicant’s continued activities, central to the Guideline L analysis is the determination of whether Applicant’s activities pose a conflict of interest with his security responsibilities and could create an increased risk of unauthorized disclosure of classified or sensitive information. Applicant’s lectures and trainings domestically, abroad, and for the DOD involve open-source materials based on his graduate-school program. Moreover, the DOD client has at times requested that Applicant cultivate relationships with certain foreign government officials to arrange future training. Applicant’s outside activities generate less than two percent of his total income and typically his compensation is travel and lodging expenses. Applicant reported all of his outside activities and foreign travel on his security clearance application. A common-sense analysis dictates that the routine and public nature of these speaking engagements or graduate-program design in academia is functionally equivalent to a foreign entity purchasing a book, curriculum, taped lecture series, or online course. Therefore, the Government has not established a potential conflict of interest between Applicant’s outside activities and his security responsibilities under AG ¶ 36. 8 Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines B and L and the factors in AG ¶ 2(d) in this whole-person analysis. Applicant is very well-regarded within academia and the DOD community for his subject-matter expertise and his ethical principles. Through his academic position he engages with U.S. and foreign government and military officials, at times at the prompting of his DOD client, to engage in training and lectures on international security strategies. He is cognizant of the security concerns associated with his outside activities and has reported his foreign travel and consulting work. Given the limited depth and nature of the interactions arising from his university position and his outside activities, no potential conflict of interest has been established. Applicant’s deep and longstanding relationships in the United States and with the U.S. military and government dictate that he can be expected to resolve any potential conflict in favor of the U.S. interest. I conclude Applicant mitigated the security concerns arising from his foreign contacts and outside activities. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline B: FOR APPLICANT Subparagraphs 1.a.-1.c.: For Applicant Paragraph 2, Guideline L: FOR APPLICANT 9 Subparagraph 2.a.: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national security interests of the United States to grant Applicant eligibility for a security clearance.11 Eligibility for access to classified information is granted. ________________________ Eric H. Borgstrom Administrative Judge 11 See SEAD 4, Appendix A, ¶¶ 1(d) and 2(c).